Judge rules ‘don’t ask, don’t tell’ military ban on gays unconstitutional

by CynthiaYockey on September 10, 2010

Log Cabin Republicans, a 19,000-member gay and lesbian organization, won an important victory for lesbian and gay equality yesterday when a California judge ruled the military’s ban on gays serving in the military known as “don’t ask, don’t tell” is unconstitutional.

The Associated Press reports:

RIVERSIDE, Calif. — A federal judge in Southern California has declared the U.S. military’s ban on openly gay service members unconstitutional.

U.S. District Judge Virginia Phillips on Thursday granted a request for an injunction halting the government’s “don’t ask, don’t tell” policy for gays in the military.

Phillips says the policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services.

Allahpundit carps a bit that this as judicial overreach, despite the fact that defending minorities from the majority is EXACTLY what judges are supposed to do, and deftly summarizes the issues:

There are two claims: First, that DADT violates gay service members’ due process right of “intimate conduct” — a direct result of Kennedy’s opinion striking down sodomy laws in Lawrence v. Texas — and second, that it infringes on their right to free speech by forbidding them from talking about all sorts of subjects in the interest of keeping them closeted. The military can, of course, force its members to keep silent about various things and it can also restrict their “intimate conduct” — but it needs a compelling reason to do so, and according to the court, based on the evidence there’s simply no compelling reason to do that vis-a-vis orientation. (Military personnel from various U.S. allies who already allow gays in their armies say the same thing.) There’s no equal protection ruling here as there was in the Prop 8 case, but otherwise the reasoning is very much the same. Since the government is either unwilling or unable to provide a convincing argument for discriminating based on sexuality, they can’t discriminate based on sexuality. Simple as that.


By the way, if you think it’s easy to keep silent about your sexual orientation and that it’s not a free speech issue, then YOU try hiding EVERY aspect of your sexual orientation in ALL of your conversations 24/7 for at least a week. Try this helpful — and very realistic — visualization: imagine that if you slip, you will lose your career, your retirement, your friends,  your home and everything you ever worked for.

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Janis September 10, 2010 at 12:21 pm

It’s about damn time. It should be fun watching Barky try to dance both sides of this issue …

John F September 13, 2010 at 9:12 am

I’m active duty Army Officer (Lieutenant Colonel with 21 years of service). I’m all for the repeal of DADT. It was a stupid law when Clinton (and a Dem Congress) proposed and passed it, it’s a dumb law now. I would much prefer however that Congress pass and the President sign a law repealing it, rather than a long, drawn out legal battle through the Supreme Court. Unfortunately I don’t think Congress has the political courage required.

As a young and stupid (as if there is any other kind) Lieutenant I thought differently on this issue, I bought into the whole morale and welfare argument against allowing gays to openly serve. As I got older, and realized that some of the best officers I’ve ever met were bachelors (or bachelorettes) in their late thirties, and not because they were too busy to find the love of their lives, I realized that we were forcing people to make horrible choices between who they are and their desire to serve their country.

There may be some dinosaurs in the military who will retire over allowing homosexuals to serve…so be it, a lot of them need to go anyway. I think we’ll find (and the MSM will be shocked to learn) that most 20-somethings are not afraid of the homosexual boogey man, and will continue to drive on with their mission without worrying about who the guy who watches their back in combat sleeps with when they get home.

CynthiaYockey September 13, 2010 at 12:27 pm

John F,

Thank you for sharing your perspective on DADT — it means the most when the desire to have DADT repealed comes from our active duty service members.


Doctor Whom September 13, 2010 at 10:21 pm

Regarding DADT and the First Amendment, I made that argument in the NYT back in the nineties. I’m glad to see that I’m in good company.

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